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TMI Blog2022 (4) TMI 1041X X X X Extracts X X X X X X X X Extracts X X X X ..... ORDER Rohit Kapoor, Member (J) 1. The instant petition has been filed under Section 232(3) and other applicable provisions of the Companies Act, 2013 ( Act ) for sanction of the Scheme of Amalgamation of Kuber Consultants Private Limited being the Petitioner No. 2 abovenamed ( Transferor Company No. 1 or Petitioner No. 2 ), Kuber Drugs Private Limited being the Petitioner No. 3 abovenamed ( Transferor Company No. 2 or Petitioner No. 3 ), Lokpriya Fabtrade Private Limited being the Petitioner No. 4 abovenamed ( Transferor Company No. 3 or Petitioner No. 4 ), Luv Kush Sales Private Limited being the Petitioner No. 5 abovenamed ( Transferor Company No. 4 or Petitioner No. 5 ), Navatan Commercial Private Limited being the Petitioner No. 6 abovenamed ( Transferor Company No. 5 or Petitioner No. 6 ), Neer Suppliers Private Limited being the Petitioner No. 7 abovenamed ( Transferor Company No. 6 or Petitioner No. 7 ) with Khattu Housing Solutions Private Limited being the Petitioner No. 1 abovenamed ( Transferee Company or Petitioner No. 1 ) whereby and whereunder the Transferor Companies are proposed to be amalgamated with the Transferee Company from the Appointed D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Equity Shareholders and unsecured creditors of the Petitioner Companies as applicable for considering the Scheme were dispensed with in view of all such shareholders and unsecured creditors having given their consent to the Scheme by way of affidavits. And further, as all Petitioner Companies had no secured creditors, no meeting of secured creditors was required to be held. (g) Consequently, the Petitioner(s) presented the instant petition for sanction of the Scheme. By an order dated 01/07/2021 the instant petition was admitted by this Tribunal and fixed for hearing on 18/08/2021 upon issuance of notices to the Statutory/Sectoral Authorities and advertisement of date of hearing. In compliance with the said order dated 01/07/2021, the Petitioner(s) have duly served such notices on the Regional Director, MCA on 13/07/2021, Registrar of Companies on 14/07/2021, Official Liquidator on 13/07/2021 Income Tax officer on 13/07/2021. The Petitioner(s) have also published such advertisements once each in the Business Standard and Aajkaal in their respective issues dated 22/07/2021. An affidavit of compliance duly affirmed on 28/07/2021 in this regard has also been filed by them. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f on account of guilty pleaded whereas relating to case under Section 211 (relating to Khattu Housing Solutions Private Limited and Navatan Commercial Private Limited) it is stated that it is against the Director of the Company and not against the company. Hence, if the scheme is sanctioned then it is not going effect the said. Further, in future also if there is any non-compliance then it can be carried against the Transferee Company. Paragraph 2 (b) of RD Affidavit: Further, it is submitted that M/s. Khattu Housing Solutions Private Limited (Transferee Company) and M/s. Navatan Commercial Private Limited (Transferor Company) were under inquiry and follow up action against the said companies are under process. The Registrar of Companies, West Bengal in his report dated 22/03/2021 has also confirmed that the above two companies were under inquiry. (Copy of the report of ROC, WB dated 22/03/2021 marked as Annexure-I is enclosed herewith for perusal and reference). Paragraph 4 (b) of Rejoinder: With reference to para 2 (b), it is stated that if the scheme is sanctioned then it is not going to effect the said and the letter of ROC report has been submitted on 19/01/2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ree Company should be directed to pay applicable stamp duty on the transfer of the immovable properties from the Transferor Companies to it. Paragraph 4 (e) of Rejoinder: With reference to para 2 (e), it is stated that the petitioners' companies undertake to pay applicable stamp duty on the transfer of the immovable properties from the Transferor Companies to it. However, Petitioner Companies states that stamp duty will be paid only after sanction of the scheme and the Scheme becomes effective. Paragraph 2 (f) of RD Affidavit: In compliance of Accounting Standard-14 or IND-AS 103, as may be applicable, the Transferee Company shall pass such accounting entries which are necessary in connection with the scheme to comply with other applicable Accounting Standards such as AS-5 or IND AS-8 etc. Paragraph 4 (f) of Rejoinder: With reference to para 2 (f), it is stated that Part-B of Clause 12 of the Scheme it is stated inter alia, that accounting entries by the Transferee Company shall be made in accordance with the applicable Accounting Standards/Indian Accounting Standard-14. Further, it is stated that the petitioner's companies undertake to comply with Accounting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake that if there are any deficiencies found, or violation committed relating to any enactment, statutory rules or regulation, the sanction granted by the Hon'ble Tribunal to the scheme will not come in the way of action being taken in accordance with the law, against the concerned persons, directors, and officers of the petitioners and Transferee Company. Paragraph 2 (j) of RD Affidavit: It is submitted that as per instructions of the Ministry of Corporate Affairs, New Delhi, a copy of the scheme was forwarded to the Income Tax Department on 04/12/2020 for their views/observation in the matter but the same is still awaited. Paragraph 4 (j) of Rejoinder: With reference to para 2 (j), it is stated that under provisions of section 230(5) of the Companies Act 2013 and in terms of the order of Hon'ble NCLT twice notices to Income Tax Department (i.e., respective income tax assessing officer) has been served and till date petitioners companies has not received any communication from the Income Tax Department. The petitioner's company are regular in filing of income tax return. Further, the sanction of scheme is not prejudicial to the public interest. Paragraph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccordingly, the same shall pursuant to Section 232(4) of the Companies Act, 2013, be transferred to and become the debts, liabilities, duties and obligations of the Transferee Company; (d) the employees of the Transferor Companies shall be engaged by the Transferee Company, as provided in the Scheme; (e) all proceedings and/or suits and/or appeals now pending by or against the Transferor Companies be continued by or against the Transferee Company, as provided in the Scheme; (f) The Transferee Company do without further application issue and allot to the shareholders of the Transferor Companies, the shares in the Transferee Company to which they are entitled in terms of the Scheme; (g) Leave is granted to the Petitioner(s) to file the Schedule of Assets of the Transferor Companies in the form as prescribed in the Schedule to Form No. CAA7 of the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 within three weeks from the date of receiving a copy of this order. (h) That any person interested shall be at liberty to apply to this Tribunal in the above matter for any directions that may be necessary. (i) The Transferor Companies and the T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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